
[Federal Register Volume 80, Number 240 (Tuesday, December 15, 2015)]
[Rules and Regulations]
[Pages 77573-77575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31488]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2015-0998]
RIN1625-AA00


Safety Zone, Delaware River; Marcus Hook, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of the Delaware River in the vicinity of Marcus Hook, 
Pennsylvania. The safety zone will temporarily restrict vessel traffic 
from transiting or anchoring in a portion of the Delaware River while 
rock blasting, dredging, and rock removal operations are being 
conducted to facilitate the Delaware River Main Channel Deepening 
project for the main navigational channel of the Delaware River. The 
safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by rock blasting, dredging, 
and rock removal operations. Entry of vessels or persons into this zone 
is prohibited unless specifically authorized by the Captain of the 
Port, Delaware Bay, or his designated representatives.

DATES: This rule is effective without actual notice from December 15, 
2015 through March 15, 2016. For the purposes of enforcement, actual 
notice will be used from December 4, 2015 through December 15, 2015.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2015-0998 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Brennan Dougherty, Sector Delaware Bay, Chief 
Waterways Management Division, U.S. Coast Guard; telephone (215) 271-
4850, email Brennan.P.Dougherty@uscg.mil.

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency, for good cause, finds that 
those procedures are ``impracticable, unnecessary, or contrary to the 
public interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that 
good cause exists for not publishing a notice of proposed rulemaking 
(NPRM) with respect to this rule because doing so would be impractical 
due to environmental restrictions which require all blasting operations 
to be conducted between December 15, 2015 to March 15, 2016. 
Furthermore, the final details of the rock blasting, dredging, and rock 
removal operation were not received until October 28, 2015. Due to the 
criticality of this phase of the Delaware River Main Channel Deepening 
project, immediate action is needed to accommodate operations while 
also ensuring vessels can safely transit through Marcus Hook Range in 
Delaware River during this time. Going forward without establishing a 
safety zone would expose mariners and the public to unnecessary dangers 
associated with rock blasting, dredging, and rock removal operations.
    For similar reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this temporary rule effective 
less than 30 days after publication in the Federal Register.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231; 33 CFR 1.05-1 and 160.5; and Department of Homeland Security 
Delegation No. 0170.1. The Captain of the Port, Delaware Bay, has 
determined that potential hazards associated with rock blasting, 
dredging, and rock removal operations starting December 04, 2015 will 
be a safety concern for anyone within 500 yards of rock blasting, 
dredging, and rock removal operations. This rule is needed to protect 
personnel, vessels, and the marine environment in the navigable waters 
within the operational area.

IV. Discussion of the Rule

    This rule establishes a safety zone from December 15, 2004 until 
March 15, 2016. The safety zone will cover all navigable waters in the 
Delaware River within 500 yards of vessels and machinery being used by 
personnel to conduct rock blasting, dredging, and rock removal. The 
duration of the zone is intended to protect personnel, vessels, and the 
marine environment in these navigable waters while operations are being 
conducted. Entry into, transiting, or anchoring within the safety zone 
is prohibited unless authorized by the Captain of the Port, Delaware 
Bay, or his designated representative. For the duration of the project, 
in the vicinity of the rock blasting, rock removal, and dredging 
operation, one side of the main navigational channel will be closed. 
Vessels wishing to transit the safety zone in the main navigational 
channel may do so if they can make satisfactory passing arrangements 
with drill boat APACHE or the dredge TEXAS in accordance with the 
Navigational Rules in 33 CFR Subchapter E via VHF-FM Channel 13 at 
least 30 minutes prior to arrival. If vessels are unable to make 
satisfactory passing arrangements with the drill boat APACHE or the 
dredge TEXAS, they may request permission from the Captain of the Port, 
or his designated representative, on VHF-FM channel 16. All vessels 
must operate at the minimum safe speed necessary to maintain steerage 
and reduce wake.
    No vessels may transit through the safety zone during times of 
explosives detonation. During rock blasting detonation vessels will be 
required to maintain a 500 yard distance from the drill boat APACHE. 
The drill boat APACHE will make broadcasts, via VHF-FM Channel 13 and 
16, at 15 minutes, 5 minutes, and 1 minute prior to detonation, as well 
as a countdown to detonation on VHF-FM Channel 16. Sector Delaware Bay 
will ensure significant notice will be given to the maritime community 
of dates and times of blasting via broadcast notice to mariners on VHF-
FM Channel 16. After every explosive detonation a survey will be 
conducted to ensure the navigational channel is clear for vessels to 
transit. The drill boat APACHE will broadcast, via VHF-FM channel 13 
and 16, when the survey has been completed and the channel is clear to 
transit. Vessels requesting to transit through the safety zone shall 
proceed as directed by the designated representative of the Captain

[[Page 77574]]

of the Port, and shall contact the drill boat APACHE and the dredge 
TEXAS on VHF-FM channel 13 for safe passing information.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on a number of these statutes and E.O.s, and we discuss 
First Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, it has not been 
reviewed by the Office of Management and Budget.
    This regulatory action determination is based on the size, 
location, duration, and traffic management of the safety zone. The 
Coast Guard does not anticipate any significant economic impact because 
the safety zone will be enforced in an area and in a manner that does 
not conflict with transiting commercial and recreational traffic, 
except for the short periods of time when explosive detonation 
evolutions are being conducted. The blasting detonations will not occur 
more than three times a day. At all other times, at least one side of 
the main navigational channel will be open for vessels to transit. 
Moreover, the Coast Guard will work in coordination with the pilots to 
ensure vessel traffic is limited during the times of detonation and 
Broadcast Notice to Mariners are made via VHF-FM marine channel 13 and 
16 when blasting operations will occur.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule 
will not have a significant economic impact on a substantial number of 
small entities.
    While some owners or operators of vessels intending to anchor in or 
transit the safety zone may be small entities, for the reasons stated 
in section V.A above, this rule will not have a significant economic 
impact on any vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes. If you believe this rule has 
implications for federalism or Indian tribes, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section above.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule involves a safety zone in force from December 04, 2015, to March 
15, 2016 that prohibits entry within 500 yards of vessels and machinery 
being used by personnel conducting rock blasting, dredging, and rock 
removal operations in the Delaware River near Marcus Hook, PA between 
the southern end of Marcus Hook Anchorage to the western end of Little 
Tinicum Island, at the entrance to Darby Creek. It is categorically 
excluded from further review under paragraph 34(g) of Figure 2-1 of the 
Commandant Instruction. An environmental analysis checklist supporting 
this determination and a Categorical Exclusion Determination are 
available in the docket where indicated under ADDRESSES. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

[[Page 77575]]

List of Subjects 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add temporary Sec.  165.T05-0998, to read as follows:


Sec.  165.T05-0998  Safety Zone, Delaware River; Marcus Hook, PA.

    (a) Location. The following area is a safety zone: all the waters 
of the Delaware River within 500 yards of the dredge performing rock 
blasting, rock removal, and dredging operations, in the vicinity of 
Marcus Hook, PA between the southern end of Marcus Hook Anchorage to 
the western end of Little Tinicum Island, at the entrance to Darby 
Creek.
    (b) Definitions. (1) The Captain of the Port means the Commander of 
Sector Delaware Bay or any Coast Guard commissioned, warrant, or petty 
officer who has been authorized by the Captain of the Port to act on 
his behalf.
    (2) Designated representative means any Coast Guard commissioned, 
warrant or petty officer who has been authorized by the Captain of the 
Port, Delaware Bay, to assist in enforcing the safety zone described in 
paragraph (a) of this section.
    (c) Regulations. The general safety zone regulations found in 33 
CFR part 165 subpart C apply to the safety zone created by this 
section.
    (1) All persons and vessels are prohibited from entering this zone, 
except as authorized by the Captain of the Port, or his designated 
representative.
    (2) Vessels wishing to transit the safety zone in the main 
navigational channel may do so if they can make satisfactory passing 
arrangements with the drill boat APACHE or the dredge TEXAS in 
accordance with the Navigational Rules in 33 CFR Subchapter E via VHF-
FM Channel 13 at least 30 minutes prior to arrival. If vessels are 
unable to make satisfactory passing arrangements with the drill boat 
APACHE or the dredge TEXAS, they may request permission from the 
Captain of the Port, or his designated representative, on VHF-FM 
channel 16.
    (3) The operator of any vessel requesting to transit through the 
safety zone shall proceed as directed by the designated representative 
of the Captain of the Port and must operate at the minimum safe speed 
necessary to maintain steerage and reduce wake.
    (4) No vessels may transit through the safety zone during times of 
explosives detonation. During rock blasting detonation vessels will be 
required to maintain a 500 yard distance from the drill boat APACHE. 
The drill boat APACHE will make broadcasts, via VHF-FM Channel 13 and 
16, at 15 minutes, 5 minutes, and 1 minute prior to detonation, as well 
as a countdown to detonation on VHF-FM Channel 16.
    (5) After every explosive detonation a survey will be conducted to 
ensure the navigational channel is clear for vessels to transit. The 
drill boat APACHE will broadcast, via VHF-FM channel 13 and 16, when 
the survey has been completed and the channel is clear to transit. 
Vessels requesting to transit through the safety zone shall proceed as 
directed by the designated representative of the Captain of the Port 
and contact the drill boat APACHE on VHF-FM channel 13 to make safe 
passing arrangements.
    (6) This section applies to all vessels wishing to transit through 
the safety zone except vessels that are engaged in the following 
operations:
    (i) Enforcing laws;
    (ii) Servicing aids to navigation; and
    (iii) Emergency response vessels.
    (7) No person or vessel may enter or remain in a safety zone 
without the permission of the Captain of the Port;
    (8) Each person and vessel in a safety zone shall obey any 
direction or order of the Captain of the Port;
    (9) No person may board, or take or place any article or thing on 
board, any vessel in a safety zone without the permission of the 
Captain of the Port; and
    (10) No person may take or place any article or thing upon any 
waterfront facility in a safety zone without the permission of the 
Captain of the Port.
    (d) Enforcement officials. The U.S. Coast Guard may be assisted by 
Federal, State, and local agencies in the patrol and enforcement of the 
zone.
    (e) Enforcement period. This rule will be enforced from December 
04, 2015, to March 15, 2016, unless cancelled earlier by the Captain of 
the Port.

    Dated: December 9, 2015.
Benjamin A. Cooper
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2015-31488 Filed 12-14-15; 8:45 am]
 BILLING CODE 9110-04-P


